Federal Update: July 17, 2020 - Government Affairs (CA ...



From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:July 17, 2020The Federal Update for July 17, 2020 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc45810176 \h 1Trump Administration Reverses Student Visa Plan PAGEREF _Toc45810177 \h 1News PAGEREF _Toc45810178 \h 2ED Delays Civil Rights Data Collection PAGEREF _Toc45810179 \h 2States Sue ED over Borrower Defense PAGEREF _Toc45810180 \h 2COPAA Makes New Recommendations on Students with Disabilities PAGEREF _Toc45810181 \h 3Reports PAGEREF _Toc45810182 \h 4House Committee Issues Report on Borrower Defense Rule PAGEREF _Toc45810183 \h 4 Legislation and Guidance Trump Administration Reverses Student Visa PlanThe Trump administration reversed its plan this week to prevent international students whose college courses move fully online for the upcoming semester from remaining in the United States on a student visa. The policy was first announced last week and quickly garnered criticism from colleges around the country. Following the administration’s announcement of the new policy last week, a number of colleges, as well as 17 States, sued the administration in an attempt to block the rule. The lawsuit brought by the colleges argues that the administration violated the Administrative Procedure Act and that the policy was “arbitrary and capricious.” With the administration’s rescission of the policy on Tuesday, international students whose college programs move completely online due to the COVID-19 pandemic will be permitted to remain in the country on their student visa. Typically, international students are required to attend in-person classes in order to keep their visa, but during the COVID-19 pandemic, the administration has granted exemptions to that requirement. The administration will now continue enforcing the exemption policy for international students attending online courses for the upcoming semester. Sources: John Kruzel, “Trump Administration Rescinds Foreign Students Rule,” The Hill, July 14, 2020.Author: KSCNews ED Delays Civil Rights Data CollectionDocuments filed in the federal register by the U.S. Department of Education (ED) this week indicate that the agency is planning to delay the biennial Civil Rights Data Collection (CRDC) until the 2020-21 school year.ED had proposed changing a number of the metrics in the CRDC last November, saying that it wanted to stop collecting data on preschool enrollment by race, some disciplinary statistics, and numbers of first-year teachers, and that it would add elements on religiously-based bullying and harassment as well as other metrics. But the federal register notice published this week said they would delay those changes. Attachments to the notice said that the agency “has decided to shift the 2019?20 CRDC to the 2020?21 school year” given concerns about collecting information during a pandemic. It will also consider sampling rather than gathering data from every school if ED determines universal data collection is not possible in the coming school year.A spokesperson for ED told reporters that they were concerned about the “uncertainty and unreliability” of data collected in the last school year “given the significant and rapid change that happened in most schools when the coronavirus outbreak began.” Some commenters on the federal register notice also suggested this data collection and the changes would generate an additional burden at a time when school districts are already stretched thin. But lawmakers and some civil rights advocates have expressed concern about the delay, saying that information about things like school nurses and counselors is vital to understanding capacity for reopening.Resources:Andrew Ujifusa, “Education Department Delays Civil Rights Data Collection, Citing COVID-19,” Politics K-12, July 14, 2020.Author: JCMStates Sue ED over Borrower DefenseOn Wednesday, 22 States and the District of Columbia sued Education Secretary Betsy DeVos for her elimination of regulations designed to protect student loan borrowers who are defrauded by higher education institutions. Numerous investigations and enforcement actions by state attorneys general gave way to Obama-era Department of Education (ED) regulations that gave student borrowers protection from misleading, deceitful, and predatory practices of institutions participating in ED’s student aid programs. The complaint notes that the “2016 Rule explicitly permitted borrowers to affirmatively assert a borrower defense claim and established a uniform standard for such claims.” The complaint goes on to say that the “2019 Rule rescinds the standards and procedures established…and replaces them with a regulatory scheme that acts as an effective bar to relief for borrowers who have been harmed by institutional misconduct.” The States claim that DeVos’ rule is illegal because it is “arbitrary and capricious” in violation of the Administrative Procedure Act. Amendments to the Higher Education Act in 1994 created borrower defense policy. The 2016 rule made it so that students could apply for federal loan forgiveness if colleges got them to enroll under false pretenses. This policy, in particular, helped students who had been persuaded to apply to for-profit college that had lied about the success of their graduates.The Devos rule tightens the standards for when the government forgives the debt of federal loan borrowers based on their college’s alleged misconduct and eliminates an Obama-era prohibition on colleges requiring their students to resolve claims against their school through arbitration rather than in court. The complaint says that the “2019 Rule eliminates all viable defenses to repayment, contrary to Congress’ mandate to ED [and that] ED does not even fully deny this fact. [ED] states that one of the primary purposes of the 2019 Rule is to diminish successful borrower defense claims even where, as ED concedes, the school has engaged in actionable misconduct.”California Attorney General Xavier Becerra who led the complaint process said, “if only college students in America could count on Secretary DeVos, to fight for them as she has consistently done for the predatory for-profit education industry that has deceived and cheated these very students.”The lawsuit comes after a failed bipartisan push in Congress to stop the new rule earlier this year. Trump vetoed legislation that would have overturned DeVos’ rule, siding with DeVos over the objections of several large veteran groups that opposed the rule. Resources:Michael Stratford, “22 States and DC Sue to Block DeVos ‘Borrower Defense’ Rule”, PoliticoPro, July 15, 2020Marty Johnson, “23 State Attorneys General Sue DeVos Over Student Loan Forgiveness Change”, The Hill, July 14, 2020Author: ASBCOPAA Makes New Recommendations on Students with DisabilitiesThe Council of Parent Advocates and Attorneys (COPAA) has published new recommendations regarding the provision of compensatory services and online learning in response to pandemic-related school closures.On compensatory education, the group asserts an obligation on the part of schools to remediate learning loss for all students, but says that the issue is even more urgent for students with disabilities. In this case, they argue that the question is whether school closures mean a student was denied a free and appropriate public education (FAPE) – and that it “should be an irrefutable presumption” that students who were not able to access distance learning should be provided with compensatory education. Further, they write, the services provided should be based on a “qualitative standard” as determined by the district, with the goal of placing the student where he or she “would have been but for the closure.” They urge districts to work with parents and rewrite individualized educational plans (IEPs) to accommodate compensatory services.The group has issued a separate set of recommendations on the provision of FAPE for students with disabilities whose parents keep them out of school during the year. COPAA notes that many students with disabilities are medically complex or have disabilities that are linked to higher risks of infection or other vulnerabilities. If a parent does not want to send their child to school for health reasons, the group says “the IEP team should be obligated to offer a FAPE and appropriate accommodations through distance, hybrid, or home-based learning to the maximum extent possible.” The group notes that IDEA makes some allowance for homebound instruction due to medical issues, but does not indicate how that should be provided or what happens in a situation where a health concern may be time limited. For this reason, the group asks the U.S. Department of Education (ED) to clarify that students whose parents keep them out of school are also entitled to FAPE. Since school closures began in March, ED has closely followed recommendations from special education advocates, placing a high value on providing services for students with disabilities alongside their peers. However, with the administration urging schools and districts to reopen for in-person instruction, it is unclear how or whether they will rule on what FAPE looks like in part-time, in-person, or full-virtual instruction.The letter on FAPE is here; the letter on compensatory education is here.Author: JCMReportsHouse Committee Issues Report on Borrower Defense RuleDemocrats in the House Committee on Education and Labor issued a report recently on the Trump administration’s efforts to delay and then rewrite the regulations governing loan forgiveness for students who have been defrauded by their institution of higher education, known as borrower defense.The report was released prior to the House vote to overturn President Trump’s veto of a resolution that would have overturned the administration’s borrower defense rule – a rewritten version of the Obama-era regulation that provides only partial, not total, loan forgiveness to many eligible students. The House fell short of overturning that veto, leaving the Trump administration’s rule in place. The report outlines the history of the borrower defense rule, including actions taken by the Trump administration to roll back the original regulation. In addition, the report points out what Democrats perceive as flaws in the administration’s rewritten rule as well as mismanagement of the program by the U.S. Department of Education. The report concludes by providing a number of recommendations for improving the borrower defense program, including providing full loan relief for former Corinthian College students, processing pending borrower defense claims, working with State law enforcement to collaborate on institutional oversight, ensuring the application process is clear and simple, making sure loan servicers do not collect from borrowers who have pending claims, and relying primarily on career staff and evidence of fraud in determining the amounts of relief for applicants. The full report is available here. Author: KSCTo stay up-to-date on new regulations and guidance from the U.S. Department of Education, register for one of Brustein & Manasevit’s upcoming virtual trainings. Topics cover a range of issues, including COVID-19 related issues, grants management, the Every Student Succeeds Act, special education, and more. To view all upcoming virtual training topics and to register, visit virtualtrainings/.The Federal Update has been prepared to inform Brustein & Manasevit, PLLC’s legislative clients of recent events in federal education legislation and/or administrative law.? It is not intended as legal advice, should not serve as the basis for decision-making in specific situations, and does not create an attorney-client relationship between Brustein & Manasevit, PLLC and the reader.? Brustein & Manasevit, PLLC 2020Contributors: Julia Martin, Kelly Christiansen, Andrew BallPosted by the California Department of Education, July 2020 ................
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